Uganda v Mujabi (Criminal Session 709 of 2023) [2024] UGHCCRD 78 (25 November 2024)

2122124, U. J. I ANI

# THE REPUBLIC OF UGANDA.

## IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA.

## HCT-00-CR-SC-0709-2023

=================================PROSECUTION **UGANDA ============**

#### VERSUS

MUJABI UMAR==================================== BEFORE HON. LADY JUSTICE MARGARET MUTONYI, JHC.

### JUDGMENT

Mujjabi Umar hereinafter refered to as the accused person, was indicted for aggravated 10 defilement contrary to Sections 129(3) and (4) (c) of the Penal Code Act, laws of Uganda, as it was then.

It was alleged that the accused person between the years 2021 to December 2022 at Massajja Kibira B zone, Makindye Ssabagabo Municipality in the Wakiso District, being a father of NH performed a sexual act with the said NH a girl aged 15 years old.

When the accused person was arraigned before this court, he pleaded not guilty to the charge there by putting all the essential ingredients of the offence of aggravated defilement in issue.

The learned State Attorney, Caroline Tabaro appeared for the prosecution while learned Counsel Serwambala Julius appeared for the accused person on private brief 20 but later abandoned him. Court assigned him another advocate on state brief, Counsel Kemigabo Moureen.

Ms. Jackline Nafula and Ms. Nabuufu Jacqueline assisted court as assessors.

### **Legal Principles:**

In criminal law, an accused person is presumed to be innocent until proven guilty or 25 until he or she pleads guilty, which presumption is a constitutional right under Article 28 (3) (a) of the 1995 Constitution of the Republic of Uganda as amended.


As such the burden of proof squarely rests on the prosecution to prove the guilt of the accused person. This principle was espoused in the landmark House of Lord's case of WOOLMINGTON VS DPP [1935] AC 462 where the presumption of innocence was reconsolidated.

The standard of proof is very high. All the essential ingredients of the offence must be proved beyond reasonable doubt as was held in the case of MILLER VERSUS MINISTER FOR PENSIONS [1947] 2 ALL ER 372 where Lord Denning explained that the degree is well settled. It need not reach certainty, but it must carry a high degree of probability. He went on to state that "proof beyond reasonable doubt does not mean proof beyond a shadow of doubt, the law would fail to protect the community if it admitted fanciful probabilities or possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility, in his favour which can be dismissed with a sentence "ofcourse it is possible but not in the least probable" then the case is proved beyond reasonable doubt."

The essential ingredients that the prosecution has to prove in a charge of aggravated defilement under review are the following; -

- 1. That the victim was below 18 years of age. - 2. That there was a sexual act performed on the victim. - 3. That the accused was a parent or guardian, or person in authority over the victim. - 4. That it was the accused who committed the offence.

Failure to prove one of the essential ingredients leads to an acquittal It is also a principle of the law that facts that are not contentious can be admitted without hearing the testimomy of witnesses who participated in gathering those facts like medical evidence, forensic evidence.

**Evaluation of evidence.** 55

> The prosecution called 6 witnesses while the medical evidence both for the victim and accused persons was agreed on under section 66 of the Trial on Indictment Act.

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The prosecution and the defense under Section 66 of the Trial on Indictments Act agreed on the following documents to wit;

- PF24A the medical examination report of the accused. The same was $i)$ admitted in evidence as PE1. The accused was of the apparent age of 50 years based on his appearance and set of teeth. In fair condition and normal mental status with no recent injury on his body. The other piece of evidence agreed upon was the laboratory result for HIV which was marked as PE1 (a) which showed the HIV results of the accused person. He was found to be HIV negative. - PF3A the medical examination of the victim was admitted into evidence as ii) PE2. The victim was of the apparent age of 15 years old. She had 28 teeth. The hymen was raptured for some time. It was raptured by either a blunt object or a penis. She was HIV negative and had UTI infections. The pregnancy test was negative. She was sexually active for some time.

The evidence of the medical doctor on PF3A confirmed that there was a sexual act that was performed on the victim who was below 18 years of age.

The evidence of the medical doctor in PF24A confirmed that the accused was HIV negative and an adult person of sound mind. A person of sound mind is held 75 accountable for any criminal conduct if found culpable.

The fact that the accused was the biological father of the victim was not contentious.

The victim herself, her mother, her maternal auntie and the accused himself testified to that effect.

They were living together as family until the victim went to live with her auntie PW1 80 in Masaka during holidays.

This leaves this court with only one issue of whether it is the accused who performed the sexual act on the victim.

The prosecution has to prove that it was the accused who committed the offence.

To prove participation, the prosecution should adduce credible direct or circumstantial evidence showing that the accused participated in the commission of the crime. The prosecution relied on the following witnesses:

PW1 Kaweesi Shakira Namugenyi, a former resident of Kigamba Masaka and a sister in law to the accused informed court that the victim had just made 16 years old in February and she was born on 25<sup>th</sup>/02/2008. She stated that in December 2022 when the victim was in her P.7 vacation the mother requested that she stays with her auntie since she had no one to stay with her at home. Her aunt, a one Sofia Kaweesi brought her to her home in Masaka and after 3 days the girl complained of stomach and back ache. She bought her painkillers and anitbiotics and after a few days she was better. After a few weeks she complained again of back ache and stomach ache.

That she called her sister the mother to the victim and informed her of the child's condition.

On 31/12/2022, she still complained of having lower abdominal pain and the following morning, she started crying and complained of pain in her back, stomach and that there were fluids coming out of her private parts.

PW1 took her to Masaka Hospital and called a one Doctor Kalema who was a gyneacologist. The doctor advised her to take the child to the theatre at Masaka Regional Hospital where he examined her.

The doctor informed PW1 after the examination that the girl had no hymen and she had been sexually abused several times.

The doctor also told PW1 that he asked the girl who did it to her and she said that it was her father. PW1 asked the girl and she told her it was her father Umar. The girl narrated to her how it started. She narrated how the accused would bring blue movies when the mother was not there and after watching he would ask her to do exactly what they had watched.

That he smeared oil in her private parts and played sex with her on several occasions, including in his taxi. On another occasion he got her from her aunty's place at night after her PLE and played sex with her.

The victim informed PW1 and the doctor that when she informed her mum she got a

quaran and gave it to the father and made him swear by it, if it was true and he denied 115 everything.

That she later went to a one Racheal, who was a tenant and informed her that her father was sexually abusing her.

PW1 said that the doctor advised her to report to police but she said she would inform the child's mother first. She asked her to come to Masaka but she didn't and that is when she decided to report to police.

Her evidence on the sexual act was basically hearsay from the victim. It is not admissible in law. She however witnessed the sick girl and through that sickness it was discovered the victim was sexually abused.

PW2 is NH, the victim. Her evidence was to the effect that she is 16 years old, and no longer in a formal school but learning tailoring. She was currently staying with her aunty at Katooke. She identified the accused as her father who told her to go to sleep one day and when she did, he started doing stupid things to her which she didn't want.

That he used to show her photos which were on his phone and he started smearing oil/Vaseline on her private parts.

That she revealed to mama Racheal who advised her to inform her mother what the father had done to her.

135 PW2 informed her mother when she came back and her mother promised to ask him on return which she did but he denied.

She stated that at times when he was escorting her to school, he would say let us go back home. One time he had sex with her in an unfinished building and then left her to go to school. At times he would prepare food for her and after eating he would tell her to wash her uniform and then go and rest in his bedroom where he would come and start having sex with her.

This sexual abuse started when she was in primary seven.

When she went to live with her auntie in, Masaka PW1, she got sick and that is how she was taken to the hospital for examination where the doctor discovered she was sexually active much as she was young and had a hymen that was a raptured long ago.


The case was reported to police and she recorded police statements both in masaka and Kampala.

She went on to stay with her other aunty. Her mother informed her that the police wanted to come home. The police went to her home and she showed them where her father used to play sex with her. She also told them about the incomplete house where he had sex with her. PW2 also informed court that the accused would hold her hand and tell her to stay home. She stated that her teacher called her mum inquiring why she wasn't in school. She shared with her teacher about the sexual abuse and her dad stopping her from going to school.

PW4 was Nabakooza Sauda Kaweesi the mother of the victim (PW2) and the former 155 wife to the accused. She informed court that she gave birth to her on 25/02/2008.

She knew the accused as the father of the victim and she first heard of the victim's plight when she informed the neighbour's children about what the father was doing to her.

That when her mother asked her father, he just swore by the guran and denied while 160 the victim kept quiet.

When the victim got holidays, she went to stay with her auntie PW1 in Masaka.

While there, she got sick and it was discovered that she had been defiled.

That it was then disclosed that she had been defiled by her own father, her husband the accused.

She stated that she was shocked when her sister told her that her husband had been defiling her child. That's when she realized it was true. She stated that the accused was arrested and taken to Najianankumbi Police Post and later to Katwe Police Post.

PW4 described her home and said that there were 3 houses in the area with 2 rooms each and they all had tenants. She stated that the house belonged to her sister who let them occupy it. She went onto state that they shared the same room, there was a decker of two beds which the victim slept on and the parents had their own bed.

 PW4 stated that she left home at around 7:45 am for work and left work at around 7:00pm. She mentioned that the child was in boarding school and stayed at home during holidays.

When she confronted the accused about the sexual act, he never asked the child any questions after PW4 made him swear by the quaran and answer if it was true that he defiled the child.

PW4 also informed this court that she didn't think of taking the child for medical examination at the time.

In cross examination PW4 stated that the accused didn't have a specific time at which he left home because he had no personal taxi. Sometimes he would go to work and other times he would stay at home.

She also mentioned that she had no issues between her and the accused.

Her evidence was not weakened through cross examination as the accused never 185 raised issues of a grudge or bad relationship with her at the time of the alleged defilement.

PW5 Komugisha Caroline, a resident of Masajja in Wakiso District and a tenant on the house of PW4 and the accused stated that she had known the accusd person for about 3-4 years. She knew that the accused and PW4 had one child (PW2)

Her evidence proved the accused lived together with the victim and her mother.

PW6, Kalema Herbert a Medical doctor, 58 years old and resident of Kyotera town council in Kyotera District working with Masaka Regional Referal Hospital as a gyneacologist. He informed this court that he examines victims of assault and defilement occasionally.

He stated that on 17/01/2023 the victim NH of the apparent age of 15, told him that she had protected sex with her father.

Her hymen was raptured for some time, with either a blunt object or penile penetration. She was HIV negative and had UTI infections. Her pregnancy test was also negative. He discovered she was sexually active for some time and was also

depressed. In cross examination, he informed court that she came alone to the hospital the first time and he linked her to an NGO which deals with children and women for help. He stated that she came alone and that is why he was concerned.

Defence case.

DW1 Mujabi Umar (the accused), 50 years old and resident of Masajja in Makindve. 205 Wakiso District denied the charge against him. He gave his evidence on oath and called one other witness to support him.

He informed court that on 19/12/2022 he came back home late. That on one Friday he picked the victim from school. On 19/12/2022, He went for work late as usual leaving her with her mother. Upon his return, the mother informed him the daughter had been defiled. I asked who was responsible, and the mother replied that the girl had said I was the one who defiled her. I asked her whether she thought that I was drunk because only a drunkard could do such a thing. I told her that we both don't work on Sunday, so we shoud take the girl for medical examination or even report to the LC.

I wanted to find out the truth but her mother took her away from home. I asked her why she took the child before we could find out the truth about the allegation she was making and she didn't respond. The girl was taken to Masaka to her aunt.

I wanted to get a connection as to where the girl was taken but her mother became an enemy to me. Whenever I would come home we would just quarrel. I wanted her 220 to come back to have holidays but she refused, by the time she left home she was in good condition.

One time, his wife received a phone call at 6 am from Shakira. I talked to Shakira who told me the child was sick. I asked what she was suffering from and she said the girl was sick. The accused stated that he asked her mother when he returned in the evening and she told him that the girl had stomach ache but they had not called her again. The accused said he didn't know whether the child was taken to hospital.

He saw the girl again when he was arrested in 2023. The girl was taken to Masaka in November, 2022 for 4 months. He last spoke with her on 14/02/2023 on a phone call.


He told court that at the police they asked the girl whether the accused was her friend and she said yes twice. The third time the mother looked at her like she wanted to tell her something and the police asked her not to tell the girl anything.

The accused said that he couldn't think of anyone who would defile her but if it indeed happened, then it was in Masaka. He stated that he had been with the mother of the child for about 22 years with only one child. He went onto state that the mother wanted to separate from him because he couldn't give her another child. He believed that the child was in touch with her mother and brought up an issue that would make them separate.

The accused was informed that the mother had another boyfriend, a one Yasin Muwonge. He knew him because he worked with her. He told court that he had 8 children who were all his friends and the victim was the youngest. The allegation that he defiled his own daughter was just made up so that he could separate with his children.

DW2 was Jamada Ahmada Kireri, aged 59 years, a resident of Kasangati and Bayita Abbabiri and a friend to the accused person and operating at clock tower.

DW2 stated that he had known the accused since 2013 and he knew his family, both the wife and the daughter. He said that he knew where the accused lived in Masajja because he took him there once in 2017 when he was having family issues. He said the accused confided in him and told him that his wife had a sister in law who bought a piece of land in Masajja but lost interest in it and gave it to the accused's wife.

His wife suggested they complete the house which was on the plot and Mujjabi asked to see the documents and the wife showed them to him. So they agreed to budget and get a builder to complete the house. The wife told him they needed 10 million for the house and Mujjabi gave her the money. He stated that after the building was completed they started having disagreements. He informed court that the accused told him that the wife started coming back home late and when he complained, she told him that he can go away.

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DW2 stated that he asked the accused if he reported any of these issues to their religious leaders and he told him that he didn't inform anyone but only confided in DW2 because they had been friends for a while.

DW2 went on to state that the accused invited him to his home two times. The first time his wife was at work and the second time he went early and he met with PW4.

He stated that when the accused told her that the Sheikh had come to help them solve their issues, she responded by saying that she couldn't tell her bosss she was late because she was solving family issues. DW2 said that this was between 2018 and 2019. He also stated that he was told the child stayed in Katooke with her aunt.

He informed court that their conflict was about the 10 million shs. he gave his wife. That the accused told him when PW4 came home one evening she told him that if he wanted his 10 million shs, she would do something to him he would never forget.

DW2 stated further that when he asked about the accused, he was informed by a one 270 Rose that his daughter was defiled by a boy.

That when he met the accused and asked him about it, the accused told him it was true that there was a boy who had defiled his daughter but he had left the mother to handle the issues. DW2 informed court that this happened before the covid period, between 2019 and 2020.

He also stated that the accused didn't mention the name of the boy because he had run away and they were looking for him. The accused also told him that they didn't report the matter to the police because he wanted to first know where the boy was so that they could report and arrest him.

- When DW2 was asked by this court whether he had any evidence to show that the 280 accused did not defile his daughter, he responded saying that he did not have any evidence. - From both the prosecution and defence case, it is apparent that the victim is old enough to identify the person who performed a sexual act with her. The victim was - 15 years and lived with both her parents. 285


The evidence on both sides brings out the fact that when the victim disclosed to the mother that her father was sexually abusing her, the accused was asked but he denied.

The evidence of DW2 Jamada Ahmad Kireri a friend to the accused that tried to bring out the issue of another boy having defiled the victim during covid time between 2019 and 2020 was just hearsay and calculated to exonerate the accused who never brought it to court's attention when the mother of the victim and victim testified.

Had the victim been defiled by the mysterious boy DW2 alluded to, the accused would have not failed to bring it out in cross examination of the victim.

The same applies to the alleged grudge arising out of the 10,000,000/= shs. spent on 295 the construction of the place they were living in.

The accused never raised that issue at all or any other misunderstanding between the accused and mother of victim.

He came in as a friend to tell lies to this court in an effort to bail his friend out.

His evidence did not raise any doubt at all as it did not corroborate the evidence of 300 the accused but put his own narrative not connected to the defence put up by the accused.

I listened carefully to the child, who never contradicted herself.

from the father if there is nothing wrong.

She was a victim of repeated sexual abuse that was confirmed by the medical evidence that described her as sexually active at 15 years of age.

The medical examination corroborated the evidence of sexual encounters with her father who penetrated her several times.

The conduct of her mother of taking her away from home with the father the accused claiming he did not know where the child was taken and that the mother did not want him to know further corroborates the sexual abuse because no parent can hide a child

Scanned with CS CamScanner It further confirms the fact that the mother of the victim had doubt about her husband's sexual encounter which doubt was removed when the child fell sick as a result of pre mature sexual intercourse with the father. According to her testimony, when she received the sad news of defilement of her daughter by her own father, she now believed the child's earlier information by the sexual abuse by the father,

Certainly applying Vaseline to her was intended for him to have deep penetrating sexual intercourse with her leaving her hymen completely raptured.

It was not done once but several times. The victim in this case is one of the many who get shocked by the sexual abuse by the person of authority over them and never report immediately until after some time when it becomes too much for them.

This court is very satisfied that there is no mistaken identity of the accused by the victim neither is her evidence a result of manipulation by the mother.

He was properly identified by the victim as her father who turned her into a sexual partner.

In the result I am of the view that the prosecution proved all the ingredients of the offence of aggravated defilement against the accused person beyond reasonable doubt and reject the defence as a calculated move to bluff this court.

I agree with the opinion of the two lady assessors and find the accused guilty as charged and convict him accordingly. 330

Dated at Kampala this 25<sup>th</sup> day of November 2024

Hon Lady Justice MARGARET MUTONYI, JHC

**CRIMINAL DIVISION.** 335

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